True Potential Investments Pension Scheme · CAS-130207-N7C2

CAS-130207-N7C2

Ombudsman’s Determination Applicant Mr L

Scheme True Potential Investments Pension Scheme (the Scheme)

Respondent Mr Peter E O’Hare (the Employer)

Outcome

Complaint summary

Background information, including submissions from the parties The sequence of events is not in dispute, so I have only set out the salient points.

On 3 October 2016, Mr L began his employment with the Employer. The Employer operates its business as a Sole Trader.

On 1 April 2017, Mr L was enrolled into the Scheme.

Between June 2022 and July 2023, the Employer failed to pay pension contributions into the Scheme.

In July 2023, Mr L left his employment with the Employer.

1 CAS-130207-N7C2 On 30 September 2024, Mr L brought his complaint to The Pensions Ombudsman (TPO).

Mr L has said that he did not receive all of his payslips from the Employer between June 2022 and July 2023. He has provided copies of the available payslips for the months between November 2022 and February 2023, as well for May 2023. These payslips showed Mr L’s gross pay and the employee contributions deducted from his pay. The employer contributions are not shown on the payslips.

Mr L has also provided a schedule from HMRC, which showed his gross pay between June 2022 and July 2023. A breakdown of his gross pay for each month and the deductions detailed in the available payslips have been included in the Appendix.

The Scheme administrator provided a schedule of the pension contributions made to Mr L’s Scheme account (the Schedule) by the Employer. The Scheme administrator also confirmed that contributions should have been paid into the Scheme in line with its True Potential Auto Enrolment Employer Agreement (the Agreement) from June 2022 to July 2023. The relevant parts of the Agreement, and extracts from The Pension Regulator and the Pensions Act 2008 (the Act) have been included in the Appendix.

On 12 December 2024, TPO wrote to the Employer to ask for more information in response to Mr L’s complaint.

Adjudicator’s Opinion Mr L’s complaint was considered by one of our Adjudicators who concluded that further action was required by the Employer as it had failed to remit the contributions that were due to the Scheme. The Adjudicator’s findings are summarised below:-

• The Adjudicator stated that the Employer was given reasonable opportunity to respond and engage with Mr L’s complaint to TPO, but it did not do so. She said that, as the Employer had not responded to any of TPO’s communications, she had to base her Opinion solely on the information provided by Mr L.

• The Adjudicator said that she had no reason to doubt the information provided by Mr L. The evidence provided by Mr L and the Scheme administrator confirmed that the Employer did set up a workplace pension for Mr L with the Scheme in line with auto-enrolment obligations, and that it paid pension contributions into the Scheme prior to June 2022.

• The Appendix provides a summary of Mr L’s monthly gross pay from June 2022 to July 2023. Pension contributions were not paid into the Scheme during this period, even though Mr L was still enrolled in the Scheme and his pay met the pension

2 CAS-130207-N7C2 qualifying earnings threshold for the entire period except for in the months between August 2022 and October 2022.

• In the Adjudicator’s opinion, the Employer acted in breach of the Agreement, because it has not paid the contributions due for these months in accordance with the Agreement and the expectations set out by the Act, which amounts to maladministration.

• As a result of its maladministration, Mr L was not in the financial position he ought to be in. Pension contributions should have been paid to the Scheme and calculated by reference to the statutory minimum automatic enrolment contribution rate of 3% and 5% employer and employee contributions. It was the Adjudicator’s view, on the balance of probabilities that £1,073.67 in employee contributions and £805.25 in employer contributions had not been remitted to the Scheme.

• In the Adjudicator’s view, Mr L had suffered serious distress and inconvenience due to the Employer’s maladministration. The Adjudicator was of the opinion that an award of £1,000 for non-financial injustice was appropriate in the circumstances.

Ombudsman’s decision

3 CAS-130207-N7C2

Directions

(i) pay Mr L £1,000 for the serious distress and inconvenience he has experienced;

(ii) Mr L’s This figure represents employee contributions of £1,073.67 and employer contributions of £805.25;

(iii) establish with the Scheme administrator whether the late payment of contributions has meant that fewer units were purchased in Mr L’s Scheme account than he would have otherwise secured, had the contributions been paid on time; and

(iv) pay any reasonable administration fee should the Scheme administrator charge a fee for carrying out the above calculation.

Camilla Barry

Deputy Pensions Ombudsman 26 February 2025

4 CAS-130207-N7C2 Appendix Pay period Gross pay (£) Employee TPO’s contributions (£) comments

June 2022 1088.00

July 2022 1343.00

August 2022 * 510.00

September 2022 * 0.00

October 2022 * 0.00

November 2022 3360.00 113.60 Payslip provided

December 2022 3250.00 109.20 Payslip provided

January 2023 3250.00 109.20 Payslip provided

February 2023 3533.30 120.53 Payslip provided

March 2023 3347.50

April 2023 3347.50

May 2023 3347.50 113.10 Payslip provided

June 2023 3347.50

July 2023 3347.50

* Mr L did not meet the qualifying earnings threshold this month

5 CAS-130207-N7C2 Appendix True Potential Auto Enrolment Employer Agreement

Your duties.

In order to use the True Potential Pension, you agree to:

• Set up and manage the automatic enrolment pension scheme, in line with the expectations set out by The Pensions Regulator (TPR), via your individual secure employer site.

…

• Provide us with the following information in order to establish and manage your scheme, and monitor this to ensure that it is correct: o Company name o Companies House number o Registration number o Registered office address o Contact address (if different) o Contact details o Elected Scheme Name o Staging Date o Nominated retirement age for the scheme o Tax relief method to be applied to member contributions o Type of salary contributions are to be deducted from o Elected default fund choice o Level of contributions to be paid o How you would like to communicate with your employees

…

Regulation.

You retain sole responsibility for compliance with all relevant Regulatory Requirements of the Employer in respect of Automatic Enrolment legislation.

6 CAS-130207-N7C2 Appendix The Pensions Regulator

Making contributions to your pension scheme

How much to pay in

The amount you and your staff member pay into your pension scheme may vary depending on which pension scheme you choose. However, by law, you and your staff have to pay a minimum amount into your scheme.

This is set at 8% of your member of staff's earnings. You, the Employer, must pay at least 3% of this, but you can choose to pay more.

Total minimum Employer minimum Date contribution contribution

06/04/2019 8% (including 5% staff 3% onwards contribution)

…

When you must pay your contributions

You must agree the dates when you will pay contributions into the scheme with your scheme provider.

However, by law, when you take contributions from your staff's pay you must pay these to your pension scheme by the 22nd (19th if you pay by cheque) day of the next month.

You may be fined by The Pensions Regulator if you don't pay by the time you've agreed with your scheme provider.

7 CAS-130207-N7C2 Appendix Pensions Act 2008

20 Quality requirement: UK money purchase schemes

(1) A money purchase scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if under the scheme—

(a) the jobholder's employer must pay contributions in respect of the jobholder;

(b) the employer's contribution, however calculated, must be equal to or more than 3% of the amount of the jobholder's qualifying earnings in the relevant pay reference period;

(c) the total amount of contributions paid by the jobholder and the employer, however calculated, must be equal to or more than 8% of the amount of the jobholder's qualifying earnings in the relevant pay reference period.

8